The victim of the nonconsensual online publication of intimate photographs or videos may bring an action against the person who published the material if the perpetrator obtained the images through a trespass to chattels and harmed the plaintiff.
1) Intentional and unjustified;
2) Physical interference with the use and enjoyment of plaintiff’s personal property in plaintiff’s possession;
3) Causing harm to plaintiff.
1) Davidoff v. Davidoff, No. 101728/06, 2006 WL 1479558 (N.Y. Sup. Ct. May 10, 2006)
Procedural Posture: Defendants alleged that the court had no personal jurisdiction over them and argued that they were not properly served.
Law: Trespass to chattels; intentional infliction of emotional distress, destruction of personal property; computer trespass; computer tampering; defamation; tortious interference with business
Facts: Plaintiff created and owns the contents of www.JonathanDavidoff.com and from his home in New York, he places personal and professional information on the site, such as photographs of himself and his family, his resume, and other professional achievements. He posts his content from his New York computer. He advertised his website and instructed people to review it—including certain business contacts. Plaintiff alleged that the defendants, his uncle and aunt (both Florida residents), without his permission or authority, entered the site from their Florida home computer, deleted all the files on the website, and placed their own picture of the plaintiff on the site, with phrases like “Pig of the Year,” and “I’m going to eat everything in site [sic].” Plaintiff then brought his action for various claims for relief against his aunt and uncle. Defendants moved to dismiss, arguing that the court had no subject matter jurisdiction over them because they lived in Florida, and their alleged misconduct occurred in Florida.
Outcome: The court agreed with defendants. The court dismissed plaintiff’s claims for lack of personal jurisdiction because defendants’ alleged actions all occurred in Florida rather than New York, where plaintiff brought suit.
Special Notes: For each claim, the court considered where the “tort” at issue actually occurred. For “trespass to chattels,” the “relevant inquiry [wa]s whether a tortious act occurred in New York by the defendants. The act of damaging the Website at best, occurred in Florida, where defendants were located when they typed on their computer and accessed the Website’s hosting company in Florida. In the context of the Internet, the content of plaintiff’s website cannot be deemed to be located wherever the content may be viewed for jurisdictional purposes, as it has always held that the mere fact that the posting appears on a web site in every state will not give rise to jurisdiction in every state.”1
d. Practice Pointers
For jurisdictional concerns, consider where the action occurred.
- 1. Id. at *11.